Citation Nr: 0901576
Decision Date: 01/14/09 Archive Date: 01/22/09
DOCKET NO. 04-41 681 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a right shoulder
disorder.
2. Entitlement to service connection for a lower back
disorder.
3. Entitlement to service connection for residuals of left
ankle fracture, claimed as torn ligaments.
4. Entitlement to service connection for sinusitis.
5. Entitlement to service connection for right ear hearing
loss disability.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from October 1966 to March
1976 and from January 29, 1981 to February 11, 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. A hearing was held before a
decision review officer at the RO in August 2005. The case
was previously before the Board in August 2007, at which time
other issues which were on appeal were disposed of, including
the issue of service connection for scoliosis and congenital
defect of the dorsal spine. The Board found that new and
material evidence had been received to reopen a claim for
service connection for residuals of left ankle fracture,
claimed as torn ligaments, and remanded each of the issues
listed on the cover page to the RO for further development.
The issue of entitlement to service connection for right ear
hearing loss disability is addressed in the REMAND portion of
the decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's current right shoulder arthritis was not
manifest in service, is unrelated to service, and was not
manifest to a degree of 10 percent within one year of service
discharge.
2. The veteran's current low back arthritis and degenerative
disc disease was not manifest in service, is unrelated to
service, and was not manifest to a degree of 10 percent
within one year of service discharge.
3. The veteran's current left ankle arthritis was not
manifest in service, is unrelated to service, and was not
manifest to a degree of 10 percent within one year of service
discharge.
4. The veteran's current sinusitis was not manifest in
service and is unrelated to service.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right shoulder
disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2008).
2. The criteria for service connection for a lower back
disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2008).
3. The criteria for service connection for residuals of left
ankle fracture, claimed as torn ligaments, are not met. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002);
38 C.F.R. §§ 3.303, 3.307, 3.309 (2008).
4. The criteria for service connection for sinusitis are not
met. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's duties to notify and assist
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision,
the claimant must be provided notice consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. For claims pending before VA on or
after May 30, 2008, 38 C.F.R. § 3.159 was recently amended to
eliminate a requirement that VA request that a claimant
submit any evidence in his or her possession that might
substantiate the claim. See 73 FR 23353 (Apr. 30, 2008).
Here, the duty to notify was satisfied through a March 2003
letter to the veteran that addressed all three notice
elements and was sent prior to the initial AOJ decision in
this matter. The letter informed the veteran of the evidence
required to substantiate the claim and of the veteran's and
VA's respective duties for obtaining evidence.
Kent v. Nicholson, 20 Vet. App. 1 (2006), held, in pertinent
part, that the notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) require VA by means of a specific
notice letter to (1) notify the veteran of the evidence and
information necessary to reopen the claim, (i.e., describe
what new and material evidence is); (2) notify the veteran of
the evidence and information necessary to substantiate each
element of the underlying service connection claim; and (3)
notify the veteran of what specific evidence would be
required to substantiate the element or elements needed for
service connection that were found insufficient in the prior
denial on the merits. As the claim for service connection
for left ankle fracture, claimed as torn ligaments, was
reopened in August 2007, any violations of notice required by
Kent are harmless.
The veteran was notified of effective dates for ratings and
degrees of disability in April 2006. See Dingess v.
Nicholson, 19 Vet. App. 473 (2006). Any deficiencies in VA's
duties to notify the veteran concerning effective date or
degree of disability for the service connection claims are
harmless, as service connection has been denied thus
rendering moot any issues with respect to implementing an
award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A. In this case, VA obtained service, VA, and private
medical records, and VA examined the veteran for each
disability being decided in April 2008. Some of the
disorders were also examined in May 2006. VA has satisfied
its assistance duties.
Pertinent criteria
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §
3.303(a) (2008). In order to prevail on the issue of service
connection, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service occurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
That an injury or disease occurred in service is not enough;
there must be chronic disability resulting from that injury
or disease. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b) (2008). Service
connection may also be granted for any injury or disease
diagnosed after discharge when all the evidence, including
that pertinent to service, establishes that the disease or
injury was incurred in service. 38 C.F.R. § 3.303(d) (2008).
Arthritis may be presumed to have been incurred in service if
it is manifest to a degree of 10 percent within one year of
discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008).
Analysis
Right shoulder
Service medical records show right shoulder pain treated in
August 1974 after the veteran had been playing softball. The
assessment was right shoulder muscle spasm. On service
discharge examination in March 1976, the veteran reported
that he was in good health and his shoulder was normal.
Mild right shoulder degenerative changes were shown on VA
X-ray in June 2003.
On VA examination in April 2008, the examiner noted the
service medical record showing treatment for right shoulder
muscle spasm and the negative X-rays and stated that there
were records indicating that the veteran may have a torn
labrum. The examiner indicated that this was not consistent
with the pain claimed in the military, and that current
medical records do not indicate chronicity from 1974.
Therefore, he felt that it was not likely that the veteran's
current right shoulder condition is related to service. This
is the only medical opinion of record on the matter of
whether the veteran's current right shoulder disorder is
related to service, and it is negative. Moreover, right
shoulder arthritis was not manifest to a degree of 10 percent
within one year of service discharge, so its service
incurrence may not be presumed. Accordingly, service
connection is not warranted for a right shoulder disorder.
Lower back
Service medical records show the veteran had treatment for a
low back strain in July 1970, after a motor vehicle accident.
He also had treatment in July 1970 for low back pain after
falling off of a cycle. He had a back ache in September 1975
when he was assessed with viral syndrome. On service
discharge examination in March 1976, his lumbosacral spine
was normal.
On VA examination in February 1981, the veteran reported that
his back had hurt him since service. His lumbar spine had a
full range of motion and deep tendon reflexes in his lower
extremities were normal. No lower back disorder was
diagnosed.
December 2003 VA X-rays show mild to moderate lumbar
spondylosis not changed since December 2001. Leonard
Strichman, M.D. diagnosed the veteran with low back pain and
lumbar disc bulges at L3-L4, L4-L5, and L5-S1 in August 2004.
On VA examination in April 2008, the examiner noted that the
service medical records reported back pain mostly related to
a thoracic condition and not to a low back condition,
although there had been treatment for low back pain in May
1971 and January 1972, significant for muscle or ligament
strain only. X-rays had never revealed low back degenerative
changes of the discs prior to 2004, when bulging discs,
degenerative disc disease, and scoliosis were found. The
examiner indicated that there were no records to indicate a
continuation or chronicity of any low back condition
following the veteran's service discharge. The examiner felt
that the veteran had a chronic lumbosacral strain due to a
congenital thoracic spine condition and not related to
service.
As no medical evidence shows a chronic lower back disorder in
service, arthritis of the lower back to a degree of 10
percent within one year of service discharge, or a nexus
between any current back disorder and the veteran's service,
service connection is not warranted for lower back disorder.
Left ankle
An April 1972 service medical record shows complaints of pain
and swelling after the veteran ran into a wall with his left
ankle the day before. X-rays of the left ankle were
negative, and an ace wrap, heat, and crutches were
prescribed. On service discharge examination in March 1976,
the veteran's left ankle was normal. On VA examination in
December 1981, the veteran stated that he tore ligaments in
his left ankle in service and that it bothers him
periodically. His left ankle was normal to examination and
by X-rays.
On VA examination in May 2006, the veteran reported that he
had sprained his left ankle in 1972 playing football, and
that it was casted for several months, and that he injured it
again in 1974 while playing softball. The examiner diagnosed
osteoarthritis of the ankles and rendered an opinion that the
veteran's left ankle osteoarthritis was caused by his service
activity. The examiner did not mention the veteran's service
medical records or his post-service medical history prior to
2006.
On VA examination in April 2008, the examiner noted the
contents of the April 1972 service medical record and VA
medical records from after service, found that the veteran
currently had mild degenerative changes of his left ankle,
and indicated that there were no notes indicating that the
veteran's left ankle was ever again evaluated after service.
The examiner indicated that the veteran currently had age
appropriate degenerative changes of his left ankle.
Therefore, he rendered an opinion that it was not likely that
the veteran's current mild degenerative changes are related
to service.
Here, there are conflicting medical opinions, one supporting
service connection and the other against service connection
for left ankle disorder. The medical opinion not supporting
a nexus to service is deemed more probative, as that opinion
indicates that the examiner specifically considered the
veteran's service medical record showing left ankle
treatment, noted that there were not any other treatment
records for ankle problems post-service, and indicated that
his degenerative changes of his ankle were age appropriate,
whereas the other opinion did not consider the service
treatment record specifically or the veteran's post-service
history prior to 2006. Also, the opinion supporting service
connection relied on a service history not supported by the
service medical records. The only injury shown in service
was when the veteran ran into a wall in 1972. He was not
casted at the time, as he had told the examiner in 2006. See
Prejean v. West, 13 Vet. App. 444 (2000) (factors for
determining probative value of medical opinions include their
thoroughness and detail, whether they discussed why contrary
opinions were not persuasive, and the opinion-writer's access
to relevant records). Moreover, the evidence does not show
arthritis of the left ankle manifest to a degree of 10
percent within one year of service discharge. Accordingly,
the veteran's left ankle arthritis may not be presumed to
have been incurred in service. In light of the above,
service connection is not warranted for left ankle
disability.
Sinusitis
Service medical records show that the veteran received
treatment in July 1971 for sinusitis secondary to an upper
respiratory infection and water in his sinuses from diving,
with spontaneous resolution. In November 1974, the veteran
reported a long term problem with headaches, thought to be
due to sinusitis. He reported that he was in good health on
service discharge examination in March 1976, and his sinuses
were clinically normal.
On VA examination in August 1997, the veteran reported that
after having his sinus drained in 1972, he had had very few
headaches. Since 1966, he had had a lot of problems with his
sinuses, including sinus drainage and post-nasal drip that
appeared to have an allergic rhinitis component to it. He
stated that he was bothered by sinuses at least 2 weeks out
of the month on and off throughout the years. He stated that
the condition had improved in 1972.
On VA examination in April 2008, the veteran reported that he
had 3 episodes of sinusitis per year. The July 1971 service
medical record and its indication that there was spontaneous
resolution of sinusitis were reviewed. The examiner
indicated that treatment records did not support the November
1974 claim of a long history of allergic sinusitis. The
current diagnosis was recurrent sinusitis, currently in
remission. The examiner stated that the veteran's complaints
of intermittent episodes of sinus pain and pressure were very
common findings in the general public. The examiner felt
that due to the lack of additional episodes in service and
the lack of documentation of chronic or recurrent episodes
after discharge, it was not likely that the veteran's current
sinus condition is related to service.
The only competent medical evidence of record as to whether
the veteran's current sinusitis disorder is related to
service is from the VA examiner who examined the veteran in
April 2008. That examiner reviewed pertinent evidence in the
claims folder and indicated that sinus pain and pressure were
very common and indicated that it was not likely that the
veteran's current sinus condition is related to service.
Since that opinion is in the negative, and chronicity since
service is not shown, service connection is not warranted for
sinusitis. The preponderance of the evidence shows that the
veteran in-service sinusitis resolved without current
residuals.
Laypersons such as the veteran are incapable of relating the
medical disorders at issue to service. Medical evidence is
required. Espiritu v. Derwinski, 2 Vet. App. 492, 495
(1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993).
ORDER
Service connection for a right shoulder disorder is denied.
Service connection for a lower back disorder is denied.
Service connection for residuals of a left ankle fracture,
claimed as torn ligaments, is denied.
Service connection for sinusitis is denied.
REMAND
The Board remanded the right ear hearing loss disability
claim to the RO in August 2007 to have a VA examiner state
whether it was at least as likely as not (a probability of at
least 50 percent) that the veteran's right ear hearing loss
is related to active service, to include excessive noise
exposure therein. The audiologist who rendered the April
2008 VA examination did not render such an opinion.
Accordingly, remand is required. RO compliance with this
remand is not discretionary. When an RO fails to comply with
the terms of a remand, another remand for corrective action
is required. Stegall v. West, 11 Vet. App. 268 (1998).
Accordingly, the case is REMANDED for the following action:
1. The VA audiologist who examined the
veteran in April 2008 should state
whether it is at least as likely as not
(a probability of at least 50 percent)
that the veteran's right ear hearing
loss disability is related to active
service, to include exposure to
excessive noise therein. If that
audiologist is not available, another
qualified health care provider should
render such opinion. Provide the
claims folder to the examiner for
review.
2. Thereafter, readjudicate the
veteran's pending claim in light of any
additional evidence added to the record.
If the benefits sought on appeal remain
denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs